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In this chapter, I test the deliberative partnership thesis and its competitors against the behavior of the African National Congress (ANC) and aligned justices on South Africa's Constitutional Court. These justices were instrumental in developing a doctrinal approach to the Constitution's Equality Clause, which reflected a constitutional vision associated with President Nelson Mandela and stressed reconciliation between South Africa's various cultural groups after apartheid. But when Mandela's successor, President Thabo Mbeki, oversaw the expansion of affirmative action, Mbeki risked conflict with the justices that the ANC had previously appointed. Again, however, this conflict did not materialize. Instead, many of the same justices began to elaborate new doctrinal positions pursuant to a transformational constitutionalism that stressed greater opportunities for the historic victims of apartheid. But when the ANC-aligned justices attempted to expand these egalitarian understandings to cases involving socioeconomic rights, they encountered stiff resistance from the ANC and subsequently capitulated, which is consistent with the deliberative partnership thesis.
I use a puzzling episode of judicial interpretation from South Africa to motivate the theoretical question about why judges sometimes alter their commitments to some legal interpretations but not others. I examine existing scholarship, which tends to portray judges as behaving in four distinct ways when engaged in legal interpretation: as guardians; as principled interpreters; as regime partners; or as strategic interpretors or deliberators. I argue that each of these portrayals falls short in explaining judges' shifting commitments to legal interpretation. Instead, I argue that judges are best understood as behaving as deliberative partners by combining key theoretical aspects of existing work into a novel theoretical position. I then outline the unique observable implications of each position and propose a fair test that examines judicial behavior in response to political parties' shifting stances on equality rights during key moments in Indian, South African, and American history.
In this final chapter, I trace out the implications of the deliberative partnership thesis for our understanding of judicial behavior, judicial power, and the development of legal rights. I speculate on a model of constitutional development that recognizes the appropriate role of political parties in legal development. I also offer a defense of partisan influence on constitutional interpretation as a more accurate safeguard of a community's self-governing, egalitarian commitments.
The increasing salience of Hindu nationalism and the emergence of the Bharatiya Janata Party (BJP) as a serious competitor in Indian politics during the 1990s forced Congress into a difficult position. Congress increasingly defended Other Backward Classes reservations to retain its appeal across India's "Hindi Belt," even hoping to ensure that members of the lower castes gained access to educational opportunities. But, by exercising increased authority over private school enrollment, Congress's policies potentially jeopardized the independent character of private minority schools that educated Christian and Muslim students, opening the door for further government control if the BJP won elections. Congress officials worked with aligned justices to develop a constitutional framework that protected education reservations while preserving the independent character of minority schools. Unlike the other examples in this book, however, these deliberations repeatedly produced inadequate results. Finally, Congress amended the Constitution and the Supreme Court willingly capitulated in a subsequent basic structure challenge, which is consistent with the deliberative partnership thesis.
Shortly after the adoption of Title VI of the Civil Rights Act of 1964 governing public spending, universities adopted affirmative action admissions policies. These policies potentially conflicted with the guarantees of Title VI and the Fourteenth Amendment. The Democratic and Republican parties adopted evolving views of these legal texts, potentially bringing them into conflict with the judges they had previously appointed. Instead, I demonstrate that aligned judges on the US Supreme Court worked in a deliberative fashion with their aligned elected counterparts to develop novel interpretations of Title VI and the Fourteenth Amendment. In some instances, however, novel judicial efforts went beyond the wishes of partisans in the elected branches, causing judges to retreat in ways that would be expected by the deliberative partnership thesis.
Shortly after the adoption of the Voting Rights Act of 1965, progressive reformers recognized new threats to minority representation that went beyond minority disenfranchisement and included efforts to dilute minority representation. Progressive justices aligned with the Democratic Party helped to refashion election law to address these evolving shortcomings by reinterpreting the statute as well as the Fourteenth and Fifteenth Amendments. Conservative justices countered by proposing new, restrictive doctrinal positions. But when those positions deviated from the wishes of elected Republicans, they capitulated and instead developed a new right discouraging racial gerrymandering. The pattern of evolving doctrinal positions is best described by the deliberative partnership thesis.
Shortly after its adoption, progressive reformers recognized substantial shortcomings of Title VII of the Civil Rights Act of 1964 governing employment discrimination. To overcome these limitation, members of the Democratic Party worked with aligned justices on the Supreme Court to develop evolving understandings of Title VII to support racial minorities seeking to access the federal judiciary and to reduce the evidentiary burdens necessary to prevail at trail. These progressives also supported willing employers' efforts by protecting affirmative action. Conservatives on the bench and in the elected branches aligned with the Republican Party worked in a deliberative fashion to counter these efforts. But, as is true for both coalitions, when justices introduced novel positions that went beyond the interests of their elected counterparts, they relinquished their novel doctrinal positions, which is consistent with the deliberative partnership thesis.
The Indian National Congress had opposed reservations (affirmative action) for India's so-called "Other Backward Classes" (OBCs) since drafting India's Constitution. But when a coalition government expanded reservations for OBCs in public employment in 1990, Congress changed its position, potentially bringing the party into conflict with the judges it had previously appointed. But this conflict never occurred. Instead, Congress officials subsequently worked with aligned justices to develop a new doctrinal framework governing reservations in employment. When these justices adopted divergent positions, however, Congress frequently overruled them with constitutional amendments. Unlike the American case, however, India's Supreme Court subsequently reviewed these amendments under the basic structure doctrine, affording them the opportunity to exercise a final say. But, in each instance, these aligned justices capitulated while nonetheless preserving a voice in important constitutional deliberations, which is consistent with the book's argument.